1. OVERVIEW OF THE NEW CUSTOMS TARIFFS
By order issued by the President of the …
Italy’s hemp mania exploded after a December 2016 Law, no. 242, regulating hemp cultivation and production went into effect, helping revive a crop that was once widely cultivated in the country, one has only to consider that in the 1940s, Italy was said to be the world’s second-biggest producer of industrial hemp, after the Soviet Union.
Light hemp’s business is undoubtedly and rapidly increasing, considering the exponential growth of growshops, which are those shops dedicated to the selling of light hemp products, considering that industrial hemp cultivated land has increased tenfold, from 400 hectares in 2013 to almost 4 thousand estimated for 2018 in the countryside, with an estimated turnover of over 40 million euros. Moreover, pursuant to the Law in question, the Italian Ministry of Agricultural is willing to invest up to a maximum of € 700,000 in order to improve this type of crop.
Generally speaking Cannabis/Hemp refers to the plant in its entirety: stem, roots, leaves, flowers, without distinguishing between plants with high THC content and those of textile use.
The flowers of these plants (inflorescences), instead, contain a high concentration of active ingredients (THC) and, once dried, they can be also smoked for recreational or medical purposes.
THC is abbreviation that stands for tetrahydrocannabidinol, which is the active ingredient in cannabis, giving it its narcotic and psychoactive effects.
Having said that, the alleged legalization of light hemp inflorescences and the significant turnover of this product are undoubtedly capturing the interest of national and international investors and so an entire economy is emerging from this legislative void.
But there is a catch that cannot be underestimated!
The 2016 Law, does not provide the cultivation, production and commercialization of light hemp inflorescences for recreational purpose (e.g. smoke). It provides, instead the cultivation of hemp, from which it is possible to obtain a certain type of products (such as food, fabrics, biofuel, clothing and construction material).
The law in question has been issued in order to promote national farmers growing industrial hemp with minute levels of a psychoactive compound, which represents an alternative form of land use, that should not be easily confused with the legalization of hemp (commonly known as cannabis).
Having said that, in order to better understand the matter at issue, it is necessary to understand the difference between (i) drugs and psychotropic substances; (ii) medical cannabis and finally (iii) light hemp.
The regulation of drugs and psychotropic substances, prevention, treatment and rehabilitation of its states of addiction, includes herbal hemp with high level of THC in the list of drugs.
In particular, it states that whoever wants to cultivate, produce, use, sell for any reason, drugs and psychotropic substances or wants to own them for commercial reasons has to be authorized by the Ministry of Health.
If given, the authorization covers also the activities of harvesting, storage and sale to those companies authorized to the production and sale of drugs.
Medical cannabis FM-2 refers to cannabis and cannabinoids recommended by doctors to their patients for symptomatic supportive treatment and they are always characterized by a standard range of quality, standing also the fact that the prescription and use of medical cannabis are traced for controlled clinical trials and observational studies.
There is still limited evidence suggesting cannabis can be used, for instance, to reduce nausea and vomiting during chemotherapy or HIV treatment, to improve appetite in people with AIDS/anorexia or to treat chronic pain, muscle spasms. In these cases, according to the Ministerial Decree in question, the prescription is charged to the national health service.
Medical cannabis can have a percentage of THC even higher than 0,6 %.
One has only to consider that the Dutch company Bedrocan® produces medical cannabis – still imported into Italy – with high THC level: Bedrocan (22%), Bedrobinol (13,5%) and Bediol (6,3%).
According to the current Italian legislation the cultivation of cannabis plants with a content of THC higher than 0,2%, even though it is for medical purpose, has to be authorized by the Ministry of Health, as provided by the current legislation concerning the regulation of drugs and psychotropic substances, prevention, treatment and rehabilitation of its states of addiction.
Moreover, the Ministry of Health has to carry out the following functions:
(i) selecting which areas can be cultivated for this purpose;
(ii) importing, exporting and distributing the products throughout the country or authorizing their importation, exportation, distribution or their holding stock;
(iii) establishing the amount of cannabis’ cultivation and production (depending on the requests made by the Italian regions and the autonomous provinces, on the basis of the patients’ needs in a specific area), informing the International Narcotics Control Boards.
The authorized farmers deliver the crop to the Ministry of Health and the latter, within four months from the harvesting, to the pharmaceutical companies for the transformation into final product.
Currently in Italy, cannabis for medical purpose is considered to be legal only if it is imported from the Netherlands and if it is produced by the Military Pharmaceutical Company located in Florence as per the agreement of the 18th of September 2014 between the Ministry of Health and the Ministry of Defense.
Pursuant to Law no. 242/2016 the percentage of THC in the analyzed plants can fluctuate from 0,2% to 0,6% without causing any liability upon the farmer.
Therefore, light hemp can have THC percentage from 0,2% (or less) up to maximum of 0,6%.
The law in question refers to the cultivation of those types of hemp plants periodically listed by the European Commission, therefore, in this case no authorization of the Ministry of Health for cultivating this kind of hemp plants is needed.
The farmers have only the duty to keep the certification of the cultivated seeds for at least 12 months and the related purchase invoice.
The Forest Department of State is the authority in charge of checking if the cultivation is compliant with the current legal framework.
The most relevant aspects of the law in question can be summarized as follows:
This law clearly does not regulate the use of cannabis flowers (inflorescences also known as buds) for recreational purpose (e.g. smoke), so it can be said that the Italian legal framework it is still not complete and exhaustive on this particular aspect.
The debate on this matter is still open, considering the importance and the impact of the light hemp’s business and the lack of regulation in the Italian legal framework.
Standing the above, the Italian Board of Health and the Ministry of the Interior have recently rendered legal opinions on this matter.
The Italian Board of Health has rendered an opinion regarding (i) the dangerousness of the inflorescences sold as light hemp in the shops (ii) if the latter can be effectively placed on the market.
In relation to the first matter the Italian Board discouraged the commercialization and use of the so-called light hemp because it can’t disregard its danger to human health.
Even though the level of THC is low, it also has underlined a lack of scientific studies on the effects of even small levels of THC on possibly vulnerable subjects such as older people, breastfeeding mothers, and patients suffering from certain pathologies.
With reference to the second matter it is affirmed that law no. 242/2016 does not provide the production and sale to the general public of the inflorescences.
Therefore, the Italian Board of Health recommends that measures should be taken to prevent the commercialization of light hemp inflorescences for recreational use.
On September 2018, the current Interior Minister Matteo Salvini issued a memo “Legal and operational aspects related to the issue of low-THC textile hemp inflorescences and connection to the drug regulation” addressed to law enforcement agencies outlining a zero-tolerance policy towards cannabis retailers.
In particular, the directive states that cannabis products that contain THC levels above 0,2%, or that are made from plants not included in the official list of industrial hemp varieties, must be considered as narcotics and, therefore, confiscated. The products can also be confiscated when:
But there is more than that.
In this document it is also affirmed that (i) law. no. 242/2016 does not provide the sale of light hemp inflorescences for personal and recreational use (e.g. to smoke), but only for food and cosmetic purpose; (ii) the exemption condition set forth for farmers (a tolerance level of THC up to 0,6%) is not valid for the sellers and/ or wholesalers, who, unlike the farmers, can test in advance the level of THC through lab tests before selling them.
Notwithstanding these provisions, the regulatory framework has not been changed, remaining still full of misinterpretations and critical issues.
It goes without saying that, all these doubts and misinterpretations, generated by a lack of regulation on this matter, can be overcome by issuing a law that clearly explains and provides all the terms and conditions of light hemp cultivation and commercialization.
This article is for information purposes only and is not intended as a professional opinion.
For further information, please contact Paolo Quattrocchi, Guido Foglia o Michelle Pepe.
